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Draft: 15 December 2003
SEA CONTAINERS LTD
as the company
citicorp trustee company limited
as the trustee
CITIBANK, N.A.
AS Custodian
And
CITIBANK INTERNATIONAL PLC
AS AGENT
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ESCROW AGREEMENT
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CONTENTS
Clause Page
1. Interpretation..........................................................1
2. Appointment.............................................................3
3. Custodian Accounts Charge...............................................3
4. Establishment Of Escrow Accounts........................................3
5. Escrow Amount...........................................................3
6. Operating/Release Procedure.............................................3
7. Authorised Representative...............................................4
8. Indemnity...............................................................5
9. Custodian...............................................................5
10. Safekeeping.............................................................7
11. Representations And Warranties..........................................7
12. Local Conditions/Force Majeure..........................................7
13. Replacement Of Custodian................................................7
14. Fees And Expenses.......................................................8
15. Notices.................................................................9
16. General................................................................10
17. Termination............................................................11
SCHEDULE 1 .........................................................12
Part A Authorised Representatives...............................12
Part B Callback Contacts........................................12
SCHEDULE 2 RULES....................................................14
SCHEDULE 3 FORM OF TRANSFER INSTRUCTION.............................16
THIS ESCROW AGREEMENT (the "Agreement") is dated ___ December 2003.
BETWEEN:
(1) SEA CONTAINERS LTD, a Bermuda exempted company of registered address 00
Xxxxxxxx Xxxxxx, Xxxxxxxx XX00, Xxxxxxx (xxx "Company");
(2) CITICORP TRUSTEE COMPANY LIMITED as trustee for and on behalf of the
Secured Parties (the "Trustee") of Citigroup Centre, Canada Square,
Xxxxxx Xxxxx, Xxxxxx X00 0XX, attention: Agency and Trust (fax number:
x00 000 000 0000);
(3) CITIBANK, N.A., located at Citigroup Centre, Canada Square, Xxxxxx Xxxxx,
Xxxxxx X00 0XX (the "Custodian"); and
(4) CITIBANK INTERNATIONAL PLC as agent of the other Finance Parties (the
"Agent") of Citigroup Centre, 33 Canada Square, Xxxxxx Xxxxx, Xxxxxx X00
0XX, attention: Loans Agency (fax number: x00 000 000 0000 / 44 84).
WHEREAS:
The Company has requested the Custodian to open and operate an escrow account in
accordance with the terms of this Agreement to hold various securities on a
safekeeping basis.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this Escrow Agreement, terms defined in the Facility Agreement shall,
unless otherwise defined herein, have the same meaning herein and unless
the context otherwise requires:
"Agent Transfer Instruction" means a Transfer Instruction in
substantially the same form as set out in Schedule 3, Part A.
"Amendment Agreement" means the amendment to the Facility Agreement dated
on or about the date of this Agreement.
"Authorised Representatives" shall mean the persons set out in Part A
(Authorised representative) of Schedule 3, as amended pursuant to Clause
6 (Operating/Release Procedure).
"Business Day" means a day on which banks, including but not limited to
the Custodian, are open for normal business in London.
"Callback Contact" means:
(a) any Authorised Representative; and
(b) the persons set out in Part B (Callback contracts) of Schedule 3,
as amended pursuant to Clause 6 (Operating/Release Procedure).
"Company Transfer Instruction" means a Transfer Instruction in
substantially the same form as set out in Schedule 3, Part B.
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"Custodian" means Citibank, N.A.;
"Custodian Accounts Charge" means the custodian accounts charge dated on
or about the date hereof between Sea Containers Ltd., Citibank, N.A. and
Citicorp Trustee Company Limited.
"Custodian Account" means the Custody Account as defined in the Custodian
Accounts Charge.
"Escrow Amount" means at any time, the lesser of:
(i) the cost to the Custodian of replacement of the Shared
Shares credited to the Custodian Account at such time; and
(ii) the market value of the Secured Shares credited to the
Custodian Account at such time.
"Facility Agreement" means the US$ 158,000,000 secured bridge loan
facility agreement dated 10 June 2003 (as amended from time to time
thereafter, including by the Amendment Agreement) between, amongst
others, Sea Containers British Isles Limited as Borrower and Citicorp
Trustee Company Limited as Trustee.
"Notice of Transfer" means a notice in substantially the form attached as
Exhibit A or Exhibit B to the Custodian Accounts Charge.
"Party" means a party to this Agreement.
"Rules" means the relevant rules from time to time of the Financial
Services Authority being as at the date of this Agreement the rules set
out in Schedule 4 (Rules).
"Secured Obligations" has the meaning ascribed to it in the Facility
Agreement.
"Transfer Instruction" means an Agent Transfer Instruction and a Company
Transfer Instruction by which the Custodian is instructed to transfer the
Secured Shares from the Custodian Account.
1.2 Construction
1.2.1 the singular includes the plural (and vice versa);
1.2.2 headings are for convenience only and do not affect the
construction of this Agreement;
1.2.3 references to Clauses and Schedules are to Clauses and Schedules
to this Agreement;
1.2.4 reference to any agreement or document includes amendments and
replacements of and supplements to such agreement or document;
1.2.5 references to any person include successors of such person and its
permitted assignees and transferees; and
1.2.6 all references to an account include all replacement accounts for
such account.
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2. APPOINTMENT
The Company designates and appoints the Custodian as Custodian and the
Custodian accepts such designation and appointment in accordance with and
limited to the terms and conditions of this Agreement. The term
"Custodian" shall include the Custodian for the time being and all its
successors further to the provisions of Clause 13 (Replacement of
Custodian).
3. CUSTODIAN ACCOUNTS CHARGE
The terms of this Agreement shall be subject to the terms of the
Custodian Accounts Charge and all rights hereunder shall be construed
accordingly.
4. ESTABLISHMENT OF ESCROW ACCOUNTS
The Custodian confirms that it has opened the Custodian Account.
5. ESCROW AMOUNT
5.1 The Custodian shall receive from the Company on or before the date hereof
the Secured Shares into the Custodian Account.
5.2 The Custodian is not obliged to credit the Secured Shares to the
Custodian Account until such time as the Custodian is satisfied that it
has received such Secured Shares.
5.3 The Custodian shall have sole discretion to accept or reject, for
deposit, any Secured Shares.
5.4 The Custodian shall have no responsibility for the exercising of any
voting rights or other powers and rights conferred on or exercisable by
the Assignor in relation to the Secured Shares.
6. OPERATING/RELEASE PROCEDURE
6.1 The Custodian shall only release the Secured Shares or any portion
thereof to any party (including the Company):
6.1.1 at the direction of the Agent in accordance with an Agent Transfer
Instruction;
6.1.2 in accordance with a duly completed Notice of Transfer;
6.1.3 in accordance with a Company Transfer Instruction provided that
the Custodian has received notice from the Agent that the Secured
Obligations have been discharged and paid in full; or
6.1.4 in accordance with the Dematerialisation Process.
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6.2 Each Transfer Instruction shall be signed by an Authorised Representative
of the Agent and / or the Company, as the case may be.
6.3 The Agent shall inform the Custodian upon the Secured Obligations being
discharged and paid in full.
6.4 The Company acknowledges that it is responsible for submitting, or
arranging for the submission of each Company Transfer Instruction to the
Agent at the same time as it submits such Company Transfer Instruction to
the Custodian.
6.5 The Agent shall use its reasonable endeavours to review each Company
Transfer Instruction received by it in accordance with Clause 6.1 within
24 hours of receipt and following such review shall either (a)
countersign the Company Transfer Instruction and transmit the same to the
Custodian or (b) notify the Custodian and the Company that it will not be
counter-signing the Company Transfer Instruction.
6.6 All Transfer Instructions shall be received by the Custodian at least by
12 noon (London time) 1 clear Business Day before the date on which the
transfer is to be made.
6.7 The Custodian Account will be in the name of the Company or such other
name as the Company may reasonably designate and will indicate that
Secured Shares do not belong to the Custodian and are segregated from the
Custodian's assets. The Custodian is not acting under this Agreement as
an investment manager, trustee or custodian, nor as an investment, legal
or tax adviser to the Company, and the Custodian's duty in respect of the
Secured Shares is solely to safekeep the Secured Shares in accordance
with the terms of this Agreement and the Custodian Accounts Charge.
6.8 The Custodian may from time to time deposit the Secured Shares with an
agent or depository or make such other arrangements for the safekeeping
of the Secured Shares as it may consider appropriate. If the Custodian
selects and uses such agent or depository it will comply with the Rules,
but will be responsible only for negligence in selection (where there
exists a choice in selection) and not for performance (save that it will
be responsible for the negligence, wilful default and fraud (but not
otherwise) of its own branches, subsidiaries or nominee companies).
7. AUTHORISED REPRESENTATIVE
7.1 The Agent and Company undertake to give the Custodian five clear Business
Days' notice in writing of any amendment to its Authorised
Representatives or Callback Contacts giving the details specified in
Schedule 1. Any amendment of Authorised Representatives or Callback
Contacts of the Company shall take effect upon the expiry of such five
clear Business Days' notice.
7.2 Any transfer by the Custodian under this Agreement will be made without
any deduction or withholding for or on account of any tax unless such
deduction or withholding is required by applicable law.
7.3 If the Custodian is required by law to make a deduction or withholding,
it will not pay an additional amount in respect of that deduction or
withholding to the relevant Party.
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8. INDEMNITY
The Trustee shall indemnify the Custodian, within three Business Days of
demand, against any cost, loss or liability incurred by the Custodian
(other than by reason of the Custodian 's gross negligence or wilful
misconduct) in acting as Custodian under the Escrow Agreement provided
that the Trustee shall only be obliged to indemnify the Custodian to the
extent that the Trustee has itself been indemnified by the Lenders in
accordance with Clause 24.10 (Lenders' indemnity to the Agent and
Trustee) of the Facility Agreement.
9. CUSTODIAN
To induce the Custodian to act hereunder, it is further agreed by the
Company that:
9.1.1 the Custodian shall not be under any duty to give the Secured
Shares held by it hereunder any greater degree of care than it
gives to its own similar property;
9.1.2 this Agreement and the Custodian Accounts Charge expressly set
forth all the duties of the Custodian. The Custodian shall not be
bound by (and shall be deemed not to have notice of) the
provisions of any agreement between the Trustee and the Custodian
except this Agreement and the Custodian Accounts Charge and no
implied duties or obligations of the Custodian shall be read into
this Agreement and the Custodian Accounts Charge;
9.1.3
(a) the Custodian shall not be liable to any person or entity
for any loss, liability, claim, action, damages or expenses
arising out of or in connection with its performance of or
its failure to perform any of its obligations under this
Agreement save as are caused by its own gross negligence or
wilful default; and
(b) the liability of the Custodian hereunder shall be limited
to an amount equal to the sum of the Escrow Amount; and
(c) notwithstanding the foregoing, under no circumstance will
the Custodian be liable to any Party for any consequential
loss (inter alia, being loss of business, goodwill,
opportunity or profit) even if advised of such loss or
damage;
9.1.4 The Company shall jointly and severally indemnify and keep the
Custodian (and, without limitation, its directors, officers,
agents and employees) indemnified and hold each of them harmless
from and against any and all losses, liabilities, claims, actions,
damages, fees and expenses, (including lawyers' fees and
disbursements), arising out of or in connection with this
Agreement, save as are caused by their own gross negligence or
wilful default;
9.1.5 without prejudice to sub-clause 9.1.6 of this Clause 9, the
Custodian shall not be obliged to make any delivery or otherwise
to act on any request or instruction notified to it under this
Agreement if it is unable:
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(a) to verify any signature on the notice of request or
instruction against the specimen signature provided for the
relevant Authorised Representative hereunder; and
(b) in the case of any such notice received by fax, to validate
the authenticity of the request by telephoning a Callback
Contact for the relevant Party;
9.1.6 the Custodian shall be entitled to rely upon any order, judgment,
decree, certification, demand, notice, or other written instrument
delivered to it hereunder without being required to determine the
authenticity or the correctness of any fact stated therein or
validity or the service thereof. The Custodian may act in reliance
upon any instrument or signature believed by it to be genuine and
may assume that any person purporting to give receipt or advice or
make any statement or execute any document in connection with the
provisions hereof has been duly authorised to do so. The Company
acknowledges that it is fully aware of the risks associated with
transmitting instructions via facsimile and telephone;
9.1.7 the Custodian may consult lawyers or professional advisers over
any question as to the provisions of this Agreement or its duties.
The Custodian may act pursuant to the advice of lawyers or other
professional advisers with respect to any matter relating to this
Agreement and shall not be liable for any action taken or omitted
in accordance with such advice;
9.1.8 the Custodian does not have any interest in the Secured Shares
deposited hereunder;
9.1.9 the Custodian shall be under no duty to take or omit to take any
action with respect to the safekeeping of, or any other matter
relating to, any of the Secured Shares held by it, except in
accordance with this Agreement and the Custodian Accounts Charge
(including, for the avoidance of doubt, any reporting, accounting
or auditing obligations);
9.1.10 the Custodian shall have a lien over the Secured Shares in respect
of any tax liability arising or loss which it may incur in respect
of any tax under this Agreement in relation to the Secured Shares;
9.1.11 sub-clauses 9.1.3, 9.1.4, 9.1.6 and 9.1.7 of this Clause 9, shall
survive notwithstanding any termination of this Agreement or the
resignation or replacement of the Custodian;
9.1.12 the Custodian shall have no responsibility for the contents of any
ruling of the arbitrators or any third party contemplated in any
other document between the Company and the other parties to the
Custodian Accounts Charge as a means to resolve disputes and may
rely without any liability upon the contents thereof;
9.1.13 in the event of any disagreement between the Company resulting in
adverse claims or demands being made in connection with the
Secured Shares, or in the event that the Custodian in good faith
is in doubt as to what action it should take hereunder, the
Custodian shall be entitled to retain the Secured Shares until
required to release them in accordance with Clause 6
(Operating/Release Procedure);
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9.1.14 no printed or other matter in any language (including without
limitation prospectuses, notices, reports and promotional
material) which mentions the Custodian's name or the rights,
powers, or duties of the Custodian shall be issued by the Company
or on its behalf unless the Custodian shall first have given its
written consent thereto; and
9.1.15 instructions are to be given in the English language.
10. SAFEKEEPING
10.1 The Company authorises the Custodian to do all such things as may be
necessary to effect the purposes of this Agreement without any
instructions from the Company including without limitation signing any
documentation required under the laws of the relevant jurisdiction.
10.2 In providing the safekeeping services contemplated hereunder, the
Custodian will comply with all the relevant rules from time to time of
the Financial Services Authority (the "Rules"). The Custodian is required
to ensure that the provisions set forth in Schedule 4 (Rules) are
contained in any agreement with its customers.
11. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Custodian that it shall at all
times, be entitled or otherwise duly authorised to deal with all or any
part of the Secured Shares as envisaged in this Agreement and the
Custodian Accounts Charge.
12. LOCAL CONDITIONS/FORCE MAJEURe
The Company hereby agrees and acknowledges that the holding of Secured
Shares in the Escrow Accounts and performance by the Custodian or any
other person of any activities contemplated in this Agreement or the
Custodian Accounts Charge is expressly subject to the local laws,
regulations, decrees, orders, government acts, customs, procedures and
practices (for the purposes of this clause "Local Events"). If any Local
Event, or any other event beyond the control of the Custodian shall
hinder, prevent or limit the performance of the Custodian, then such
duties and obligations shall be superseded and neither the Custodian nor
any affiliate thereof will be liable therefore or for any losses, damages
or expenses resulting from such hindered, prevented or limited
performance.
13. REPLACEMENT OF CUSTODIAN
13.1 The Company may at any time replace the Custodian by giving written
notice to such effect, and the details of a successor Custodian, to the
Custodian. Within 30 days of receipt of such notice and details, the
Custodian shall transfer the Secured Shares to the successor Custodian,
subject to the successor Custodian becoming a party to the Custodian
Accounts Charge or any successor agreement entered into by the parties
thereto.
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13.2 The Custodian may at any time resign for any reason by giving written
notice (a "Resignation Notice") to such effect to the Company.
13.3 On receipt of a Resignation Notice from the Custodian, the Company shall
appoint a successor Custodian reasonably acceptable to the other parties
to the Custodian Accounts Charge as soon as reasonably possible and in
any event within 30 days of the Resignation Notice, subject to the
successor Custodian becoming a party to the Custodian Accounts Charge or
any successor agreement entered into by the parties thereto.
13.4 If 30 days after delivery of the notice of resignation of the Custodian a
successor Custodian has not been appointed in accordance with Clause 13.3
of this Clause 13, the Custodian may:
13.4.1 appoint a successor Custodian itself and transfer the Secured
Shares to that successor Custodian; or
13.4.2 petition a court of competent jurisdiction to appoint a successor
Custodian or otherwise direct the Custodian in any way in relation
to the Secured Shares.
13.5 The resignation of the Custodian will take effect on the earlier of:
13.5.1 the date of the appointment of a successor Custodian under Clause
13.3 or 13.4 of this Clause 13; or
13.5.2 the date of an order of a court of competent jurisdiction under
sub-clause 13.4.2 of this Clause 13; or
13.5.3 the day which is 30 days after the date of delivery of its written
notice of resignation to the Company
(such date being the "Resignation Date").
13.6 Until the Resignation Date, the Custodian's sole responsibility shall be
to safekeep the Secured Shares. Upon resignation, the Custodian shall
transfer the Secured Shares to the successor Custodian or to the court of
competent jurisdiction or otherwise in accordance with the order of a
court of competent jurisdiction.
13.7 On transfer the Secured Shares in accordance with Clause 13.1 or Clause
13.2 of this Clause 13, the Custodian shall be discharged from all
further obligations arising in connection with this Agreement.
14. FEES AND EXPENSES
14.1 In consideration of the performance of its role under this Agreement, the
Company shall pay to the Custodian the amounts as separately agreed.
14.2 Notwithstanding the provisions of Clause 14.1 of this Clause 14, the
Company acknowledges that the Custodian's fees may be adjusted from time
to time. The Custodian shall notify the Company of any increase in its
fees in writing.
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14.3 In addition to the fees payable under Clause 14.1 of this Clause 14,
above the Company shall pay to the Custodian all out-of pocket expenses
incurred by the Custodian in performance of its role under this Agreement
(including, but not limited to, all reasonable legal fees, stamp and
other documentary duties or taxes and expenses incurred in connection
with the preparation and negotiation of this Agreement, under sub-clause
9.1.7 of clause 8 (Custodian) or sub-clause 13.4 of Clause 13
(Replacement of Custodian)).
14.4 All amounts of whatever nature payable to, and recoverable by, the
Custodian pursuant to the terms of this Agreement shall be payable,
without set-off or counterclaim, by the Company within 3 clear Business
Days of receipt of any invoice of the Custodian.
15. NOTICES
All communications required pursuant to this Agreement shall be addressed
to the respective party as follows:
15.1 If to the Company:
Sea Containers Limited, c/o Sea Containers Services Limited, 00 Xxxxx
Xxxxxx, Xxxxxx XX0 0XX
Attention: The Company Secretary
Fax: x00 000 000 0000
or such other as the Company may notify to each Party by not less than
five clear Business Day's notice.
15.2 If to the Trustee:
Citicorp Trustee Company Limited
Citigroup Centre, 14th Floor
Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Attention: Agency & Trust
Fax: x00 (0)000 000 0000
or such other as the Trustee may notify to each Party by not less than
five clear Business Day's notice.
15.3 If to the Agent:
Citibank International Plc
Citigroup Centre
Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
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Attention: Loans Agency
Fax number: x00 000 000 0000 / 4484
or such other as the Agent may notify to each Party by not less than five
clear Business Day's notice.
15.4 If to the Custodian:
Citibank, N.A.
0 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Specialised Agency Group
Fax: x00 (0)000 000 0000
or such other as the Custodian may notify to each Party by not less than
five clear Business Day's notice.
16. GENERAL
16.1 This Agreement shall be binding upon and inure solely for the benefit of
the Parties and their respective successors and assigns. No Party may
assign any of its rights or obligations under this Agreement without the
prior written consent of the other Parties.
16.2 The Custodian shall not be bound by any modification of this Agreement,
including the transfer of any interest hereunder, unless such
modification is in writing and signed by all the Parties.
16.3 Terms of this Agreement may only be waived by written consent signed by
the Party granting the waiver. The waiver by any Party hereto of a breach
of any provision of this Agreement shall not operate or be construed as a
waiver of any other provision and any extension of time for the
performance of any obligation shall not be deemed to be an extension of
time for the performance of any other obligation.
16.4 This Agreement shall be construed in accordance with and governed by
English law.
16.5 The parties to this Agreement irrevocably submit to the exclusive
jurisdiction of the courts of England and Wales and agree that delivery
or mailing of any process or other papers in the manner provided above,
or in such other matter as may be permitted by law, shall be valid and
sufficient service thereof.
16.6 The Company appoints Sea Containers Services Limited of Sea Containers
House, 00 Xxxxx Xxxxxx, Xxxxxx XX0 0XX as its agents for service of
process relating to any proceedings before the English courts in
connection with this Agreement and agrees that failure by such a process
agent to notify it of any process will not invalidate the proceedings
concerned.
16.7 If a provision of this Agreement or any document delivered pursuant
hereto is or becomes illegal, invalid or unenforceable in any
jurisdiction, that shall not affect the validity or enforceability in
that jurisdiction of any other provision of this Agreement.
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16.8 This Agreement may be executed in any number of counterparts, each having
the same effect as if the signatures on the counterparts were on a single
copy of this Agreement.
16.9 A person who is not party to this Agreement may not enforce its terms
under the Contracts (Rights of Third Parties) Xxx 0000. Further,
notwithstanding any term of this Agreement the consent of any third party
is not required for any variation (including any release or compromise of
any liability under) or termination of this Agreement.
17. TERMINATION
17.1 Subject to sub-clause 9.1.11 of Clause 8 (Custodian), this Agreement
shall terminate and the Custodian shall be discharged from all duties and
liabilities hereunder, only upon such date as the Custodian shall have
distributed all of the Secured Shares pursuant to this Agreement.
17.2 Upon termination of this Agreement in accordance with clause 17.1 of this
Clause 17 the Custodian shall promptly close the Escrow Account(s).
This Agreement has been entered into on the date stated at the beginning
of this Agreement.
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SCHEDULE 1
Part A
Authorised Representatives
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The Company
------------------------------------------------------------------------------------------------------------
---------------------------- -------------------------- ------------------------- --------------------------
Name: Position Specimen signature Telephone number
---------------------------- -------------------------- ------------------------- --------------------------
---------------------------- -------------------------- ------------------------- --------------------------
1. X.X. X'Xxxxxxxx Senior Vice President 020 7805 5000
Finance and Chief
Financial Officer
---------------------------- -------------------------- ------------------------- --------------------------
---------------------------- -------------------------- ------------------------- --------------------------
2. X.X. Xxxxxxxx Vice President - Funding 020 7805 5000
---------------------------- -------------------------- ------------------------- --------------------------
------------------------------------------------------------------------------------------------------------
The Agent
------------------------------------------------------------------------------------------------------------
---------------------------- -------------------------- ------------------------- --------------------------
Name: Position Specimen signature Telephone number
---------------------------- -------------------------- ------------------------- --------------------------
---------------------------- -------------------------- ------------------------- --------------------------
1.
---------------------------- -------------------------- ------------------------- --------------------------
---------------------------- -------------------------- ------------------------- --------------------------
2.
---------------------------- -------------------------- ------------------------- --------------------------
Part B
Callback Contacts
------------------------------------------------------------------------------------------------------------
The Company
------------------------------------------------------------------------------------------------------------
---------------------------- -------------------------- ------------------------- --------------------------
Name: Position Specimen signature Telephone number
---------------------------- -------------------------- ------------------------- --------------------------
---------------------------- -------------------------- ------------------------- --------------------------
1. X.X. X'Xxxxxxxx Senior Vice President 020 7805 5000
Finance and Chief
Financial Officer
---------------------------- -------------------------- ------------------------- --------------------------
---------------------------- -------------------------- ------------------------- --------------------------
2. X.X. Xxxxxxxx Vice President - Funding 020 7805 5000
---------------------------- -------------------------- ------------------------- --------------------------
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------------------------------------------------------------------------------------------------------------
The Agent
------------------------------------------------------------------------------------------------------------
---------------------------- -------------------------- ------------------------- --------------------------
Name: Position Specimen signature Telephone number
---------------------------- -------------------------- ------------------------- --------------------------
---------------------------- -------------------------- ------------------------- --------------------------
1.
---------------------------- -------------------------- ------------------------- --------------------------
---------------------------- -------------------------- ------------------------- --------------------------
2.
---------------------------- -------------------------- ------------------------- --------------------------
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SCHEDULE 2
RULES
(1) If the Custodian registers or records legal title to any of the Secured
Shares, and such registration or recording is to be effected outside the
United Kingdom, the Custodian must ensure that such title is registered
or recorded in the record of legal entitlement in the name of either: the
Company; or, a custodian; or, a nominee company controlled by the
Custodian or a custodian; or, the Custodian itself. Registration or
recording shall only be made in the name of a custodian or the Custodian
itself if, due to the nature of the law or market practice of the
relevant overseas jurisdiction, it is either in the best interests of the
Company to do so or it is not feasible to do otherwise in either case.
(2) As a consequence of registering or recording legal title in the
Custodian's own name as contemplated hereby, the Secured Shares may not
be segregated from the securities of the Custodian and, in the event of a
default by the Custodian, the Company may not be as well protected from
claims made on behalf of the Custodian's general creditors.
(3) The Custodian may also register or record legal title to the Secured
Shares in the name of any other person in accordance with a specific
written instruction from the Company and the Agent provided that the
consequences of making such a registration or recording are at the
Company's own risk.
(4) Where the Custodian registers or records legal title to the Secured
Shares, and such registration or recording is to be effected in the UK,
the Secured Shares shall be registered in the name of a nominee company
controlled by the Custodian or in any other manner permitted by these
Rules.
(5) The Company is hereby advised that, where the Custodian holds or arranges
(with another person) for any Secured Shares to be held overseas, there
may be different settlement, legal and regulatory requirements in
overseas jurisdictions from those applying in the UK, together with
different practices for the separate identification.
(6) The records in respect of the Custodian Account for Secured Shares shall
be designated so as to make it clear that they do not belong to the
Custodian and are segregated from the Custodian's securities.
(7) Statements delivered by the Custodian to the Company shall contain the
information and be despatched at least with the frequency set out in the
Rules.
(8) The Custodian will not permit withdrawal of any Secured Shares other than
in accordance with a Transfer Instruction.
(9) Any Secured Shares may be pooled with securities of the Custodian's other
clients, like with like, and the Company shall be beneficially entitled
to such distribution of any payments or other distributions (whether
income or capital), interest or dividends or other entitlements, rights
or benefits that arise in respect of the securities that have been pooled
as corresponds pro-rata to the Secured Shares deposited with the
Custodian by the Company.
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(10) The Custodian shall, to the extent reasonably possible, notify, make
available or deliver to the Company, in a timely manner, all official
notices, circulars, reports and announcements that are received by the
Custodian concerning the Secured Shares that require discretionary
action. The Custodian shall provide any other information relating to the
Secured Shares at such frequencies and in such manner as agreed with the
Company from time to time.
(11) Pre-advice of a corporate action event in relation to a takeover, the
option to accept or reject the terms of the offer and the timeframe, by
which the Company is required to respond to the Custodian, shall be
provided to the Company. Where the Company's instructions remain
outstanding on the advised cut-off date, the Custodian will attempt to
obtain a decision from the Company. In the event of non-receipt of the
Company's instructions with regard to a takeover by the relevant cut-off
date and time, the Custodian will automatically default to take no action
in relation to the takeover.
(12) The Custodian has in place procedures for addressing any complaints the
Company might have regarding the services provided by the Custodian under
the Agreement. The Custodian shall advise the Company of these procedures
should either wish to make a complaint.
15
SCHEDULE 3
FORM OF TRANSFER INSTRUCTION
PART A - AGENT TRANSFER INSTRUCTION
Citibank, N.A.
0 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
For the attention of Specialised Agency Group
[DATE]
Escrow Agreement
We refer to the Agreement dated [ ] between Sea Containers Limited as the
Company, Citicorp Trustee Company Limited as the Trustee and Citibank, N.A., as
Custodian (the "Escrow Agreement"). Words and expressions used in this letter
will have the same meanings as in the Escrow Agreement.
This notice is being provided to you in accordance with Clause 6.1
(Operating/Release Procedure) of the Escrow Agreement. You are instructed to
deliver the following securities from the Custodian Account:
[Description of Secured Shares: ]
[Certificate Number(s): ]
Transfer to :
[Name] [Address]
Transfer Instructions to be received by the Custodian by close of business
(London time) one clear business day before the value date of the intended
transfer .
This transfer instruction will be governed by English law.
16
Yours sincerely,
....................................................
For and on behalf of the Agent
17
PART B - COMPANY TRANSFER INSTRUCTION
Citibank, N.A.
0 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
For the attention of Specialised Agency Group
[DATE]
Escrow Agreement
We refer to the Agreement dated [ ] between Sea Containers Limited as the
Company, Citicorp Trustee Company Limited as the Trustee and Citibank, N.A., as
Custodian (the "Escrow Agreement"). Words and expressions used in this letter
will have the same meanings as in the Escrow Agreement.
This notice is being provided to you in accordance with Clause 6.1
(Operating/Release Procedure) of the Escrow Agreement. You are instructed to
deliver the following securities from the Custodian Account:
[Description of Secured Shares: ]
[Certificate Number(s): ]
Transfer to :
[Name] [Address]
Transfer Instructions to be received by the Custodian by close of business
(London time) one clear business day before the value date of the intended
transfer.
This transfer instruction will be governed by English law.
Yours sincerely,
....................................................
For and on behalf of the Company
18
COUNTER-SIGNATURE BY AGENT(1)
The Agent hereby confirms that the Secured Obligations have been discharged and
paid in full.
....................................................
For and on behalf of the Agent
19
SIGNATORIES
SEA CONTAINERS LTD
By:
CITIGROUP GLOBAL MARKETS INC.
By:
CITIBANK, N.A.
By:
CITICORP TRUSTEE COMPANY LIMITED
By:
Title:
By:
Title:
CITIBANK INTERNATIONAL PLC
By:
20
--------------------------------------------------------------------------------
(1) The Agent must counter-sign the Transfer Instruction until such time as
the Agent confirms to the Trustee that the Secured Obligations are
discharged and paid in full, in which case the Company may sign the
Transfer Instruction without counter-signature by the Agent.
